Discussion
45 The task faced by the sentencing judge in the present case was difficult. He was called upon to sentence a young person with no previous criminal history, but with a serious drug problem, who had committed a series of serious offences. His use of drugs and alcohol appear to have seriously compromised his thinking and at times resulted in bizarre and unpredictable behaviour. The evidence indicates that he was under the influence of illicit drugs and alcohol at the time of committing these offences. He is of low intelligence, and as the sentencing judge found, his prospects of retrieving his life from criminal activity and otherwise unacceptable behaviour were uncertain.
46 The crimes which the respondent committed, although varying, were all serious offences and he was required to be sentenced accordingly. They occurred during a period of a little more than 12 months and involved the use of a weapon, either a knife or a gun. They are offences which, both individually and together, indicate a preparedness to put others at risk of serious injury or to endanger their lives in pursuit of his own criminal intentions.
47 Although I accept the difficulty in framing appropriate sentences for each offence and providing a total sentence which is not crushing for the respondent I am satisfied that both the individual sentence and the total sentence are inadequate to such an extent that this Court must intervene. The principles which must be applied when there is a Crown appeal are set out in the well known remarks by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] that have been repeated on many occasions. I shall not repeat them.
48 When sentencing the respondent his Honour paid appropriate regard to the guilty pleas, allowing a discount of 25%. His Honour was mindful of the respondent's potential problems in rehabilitating himself. Whether a lengthy period of incarceration will bring positive results is uncertain. Although the respondent has now married and has a child, whether that relationship is capable of being re-established upon his ultimate release from prison in unknown. However, I am satisfied that the finding of special circumstances which his Honour made was appropriate. There will be an undoubted need for him to be assisted and supervised upon release if he is to become a worthwhile and law abiding member of the community.
49 The first two offences were both committed on 2 August 2005. Accordingly it was appropriate to provide a period of overlap of the individual sentences. In each case the respondent threatened his victim with a knife and a modest amount of money was taken. Each offence was committed in company. The respondent was aged 19 at the time.
50 The maximum penalty for each of these offences is twenty years imprisonment. This Court considered the range of penalties which have been imposed for similar offences in Henry. Although the court was not unanimous, its members joined in accepting that a range of sentencing information was available to underpin the adoption of appropriate guidelines for sentencing of offenders for those offences. The legitimacy of guidelines was criticised by the High Court in Wong & Leung v R [2001] HCA 64; (2001) 207 CLR 584 although following legislative amendment was again considered by this Court in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. The decision in Henry was affirmed, the Chief Justice stating that the guideline should be understood as an "indicator" and taken into account by a sentencing judge as a "check" or "sounding board." Although in the present case the sentencing judge made reference to Henry and said he would take it into account it is difficult to understand how this has been reflected in his reasoning or in the penalties which his Honour imposed.
51 In proposing as a guide a sentence within the range of four to five years for the full term Spigelman CJ in Henry indicated that he had in mind a category of case with identified elements. I have referred to those elements in [28] above.
52 Each of these characteristics was present in the first two offences committed by the respondent. There is nothing in the circumstances of the offences or the circumstances of the respondent, and no matters were identified by his Honour, as justifying the very significant departure from the range in Henry reflected in the sentences imposed. It may be as the appellant suggests that his Honour imposed these sentences out of concern for matters of totality. If that was the case his Honour did not give any indication in his remarks that he was taking this approach. In any event, although I appreciate the circumstances of a sentencing judge with a heavy case load, the High Court's decision in Pearce requires the appropriate sentence for each offence to first be identified before considering matters of totality ([45]).
53 In my judgment the serious nature of these offences required an individual sentence within the range accepted by this Court in Henry. I agree that having regard to the other offences for which he was required to be sentenced a fixed term was appropriate. That term should reflect the minimum period which the sentencing judge would have required to be served for each offence. Given that the offences occurred on the same day it is appropriate to provide a degree of overlap of the sentences.
54 The third offence, aggravated car-jacking, carries a maximum penalty of fourteen years but, of greater present relevance, it carries a standard non-parole period of five years. His Honour imposed a term of five years imprisonment with a non-parole period of two years and six months. In his remarks on sentence his Honour described the offence as being "somewhere just below the mid range." His Honour does not provide his reasons for this finding but presumably he was influenced by the fact that it was the co-offender rather than the respondent who brandished the gun.
55 Although this action by the co-offender justified a finding of greater criminality on his behalf I would not have been inclined to determine the respondent's part in the offence as justifying a finding below the mid-range of objective seriousness. The relevant circumstance of aggravation was that the offence was committed in company. However, it was not irrelevant that his companion was carrying and brandishing a weapon.
56 It is correct as his Honour observed that the respondent pleaded guilty and was entitled to the full discount for that plea. However, a non-parole period of only 2 years and 6 months was, in my opinion, so far below the appropriate minimum term as to require intervention by this Court. There is nothing in the respondent's subjective circumstances which would justify this sentence. It would seem likely that a "Pearce error" is responsible for the lenient sentence.
57 The fourth offence, robbery when armed with a dangerous weapon carried a maximum penalty of 25 years imprisonment. To my mind this was a very serious offence. The respondent was on bail and used a gun which was not only produced but pointed at the head of the security guard at the driver's side window of the car. The offence was planned and the amount taken, $29,000, was large. These matters collectively took the objective criminality significantly above that contemplated as the offence appropriate for the range in the guideline suggested in Henry. To my mind the sentence which his Honour imposed, a full term of 6 years with a non-parole period of 3 years and 6 months, was inadequate. Because of the structure of the other sentences which his Honour provided the respondent would not be required to serve any penalty referable to this offence.
58 I have identified problems with each of the sentences for offences one to four. The sentence for the fifth offence carried a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. His Honour found that the offence fell within the mid-range of objective criminality - that finding was challenged by the Crown which submitted that it lies above the mid-range.
59 The offence to which the respondent pleaded guilty was the specially aggravated form of the offence of breaking into a house. The circumstances of special aggravation arose from the fact that the respondent was armed with a gun. However, it was the use of the gun, the holding of it to the head of the 17 year old and its discharge when the co-offender was saying "pop him" which made this offence extremely serious. The lad must have been severely traumatised as would have been the other occupants of the premises. A significant sum of cash, approximately $A25,000 and a rifle were stolen.
60 His Honour imposed a minimum term of 4 years with a full term of 8 years. Even allowing for the respondent's guilty plea the sentence was sufficiently inadequate to require this Court to intervene.
61 The Crown submitted that when sentencing for this offence his Honour had failed to have regard to the guideline provided by this Court in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. Ponfield was primarily concerned with the offence contrary to s 112(1) which carried a maximum term of 14 years imprisonment. In that case the court confined its discussion to matters relevant to a potential sentence without establishing a starting point or developing a sentencing range. With respect to the present offence the trauma suffered by the victims is of particular significance. His Honour found that impact to be substantial. That finding alone justified a sentence which reflected a finding that the offence fell above the mid-range of objective seriousness. When it is recognised that the respondent had been released on bail at the time he committed the offence a finding that the offence fell above the mid-range of objective seriousness was unavoidable. Of course, because the respondent had pleaded guilty the standard non-parole period was not directly relevant (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [68] but remains as a guide to the appropriate range R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13]).
62 I have previously discussed the difficulties which have arisen in the application of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 and the disparity between standard non-parole periods and the sentences actually imposed. Those difficulties have not yet dissipated. In R v Knight & Biuvanua [2007] NSWCCA 283 I said at [5]:
"In many of the cases where this Court finds problems with the consideration of the standard non-parole period the sentence imposed by the primary judge differs markedly from the sentence which the relevant legislation contemplates as being appropriate, making intervention necessary notwithstanding the principles considered in MD & Ors . As this Court has previously acknowledged a successful Crown appeal imposes a greater burden on the offender: see R v Witchard [2007] NSWCCA 167 at [33]-[34]. Both this consideration, but more importantly considerations of the integrity of the sentencing process, require that sentencing judges continuously remind themselves of the principles provided by the relevant legislation and developed by this Court."